What fun.
I just got finished performing my civic duty by serving on a jury. It was a prostitution case, it was over in less than two hours, and we found the defendant "not guilty".
I got the "you've been chosen" card in the mail about three weeks ago, and yesterday morning I went down to the Orange County Courthouse, expecting to just sit there all day and do nothing, or that I would be called to be interviewed for a jury and then not actually USED on a jury. However, I was chosen for a jury, and I took the job seriously- I listened to the testimony, and I tried to be as fair to both parties as I could while making my decision.
It was interesting to hear the questions that the state's attorney was asking during the selection process- he never came right out and asked about "jury nullification", but I could tell that he was looking for people who might be inclined to treat their jury service as a platform for making some kind of political statement.
For those who may not be familiar with the idea, Jury Nullification is the idea that a jury can refuse to find a defendant guilty, regardless of the evidence or the facts of the case, simply because they don't agree with the law itself. And regardless of what any lawyer or judge tells you, this is always something that a juror CAN do- because, as the judge explains at the end of the case, before sending the jury off to deliberate, a juror is free to believe or dis-believe any testimony or evidence as they see fit.
However, the only time I think nullification SHOULD be done is if the court itself were to try and order the jury to find a defendant guilty. This is actually the whole reason we HAVE juries in the first place- judges are responsible for applying "the letter of the law", but juries have both the freedom and the responsibility to follow their conscience- and this means that their job is not only to decide whether a person did whatever action violated the law, but whether those actions were "right or wrong". A jury, in fact, can be viewed as the "morality" of the legal system.
This is why, in the voir dire process (the interview before selecting jurors), one of the things that the lawyers and the judge try to find out is if you, as a potential juror, have any particular bias about the issues involved with the case. If a person has no bias about the issue, then in theory it should be safe for them to decide "right or wrong"... but if, for example, you believe that marijuana should be legalized, then your existing bias makes you "not the right person" to decide "right or wrong" in a drug case. In my case, I don't have any strong feelings regarding prostitution- it's not something that I agree with, but it's also not a religious issue with me (as it was for one of the other prospective jurors.) I would probably not be the best person to sit on a jury involving an alleged violation of the DMCA, however, because I feel that this particular law is a lot stronger than it needs to be- in fact I feel it's totally unnecessary, and that the copyright laws at the time were already sufficient to protect the rights of those who own copyrights, as well as the rights of people like myself who exercise their fair-use rights by "ripping" their own music CD's to listening to them on an iPod.
Of course, many courts seem to have the opinion that if a prospective juror knows what nullification is, that they will be more inclined to find a defendant "not guilty" simply for the sake of doing it... maybe as some kind of misguided attempt to "stick it to" the government or the courts. This is sad, because it tends to knock a lot of people out of jury service who would otherwise be perfectly suitable to serve on a jury, and who might actually be honored to be chosen for a jury, as I was.
Anyway.
In this particular case, the state called two witnesses- a deputy who was working undercover, driving a cargo van as part of a prostitution "sting" operation, and another deputy who was listening to the first deputy's hidden microphone. The defense didn't call any witnesses at all, they simply cross-examined the two deputies. And while it may seem unusual that the defense didn't call any witnesses at all, the only people who were there were the law enforcement officers involved, and the defendant herself- and the Fifth Amendment states that nobody can be forced to testify in a case against themselves, and that if a person chooses not to testify against themselves, it wouldn't be fair for a juror (or anybody else) to hold that decision against them in any way.
According to the first deputy, he pulled his vehicle over to the curb, and the defendant got into the van without invitation and immediately asked if he was a cop. He said no. (If you've ever seen on TV or in movies that they are legally required to admit to being law enforcement officers if they are asked, remember that you're watching a TV show or a movie, and not the real thing.) She then told him to touch her a few times, in various parts of her body, to "prove" he wasn't a cop. He did so. She then asked him what he wanted. He named two acts, and offered $70. She said "alright", and told him to drive to a location a few blocks away. She then said she wanted to go into the house to "do it", but he said he wanted to do it right there in the van.
Somewhere along the line, his cell phone rang- it was the second deputy, who told him that the wireless microphone wasn't working. The first deputy answered with a code phrase which meant "come and arrest this person", and according to the first deputy, when they stopped at the corner, a separate team of uniformed officers took her out of the van and arrested her.
HOWEVER. According to the second deputy's description of events, the woman had gotten out of the van and gone into and out of a house at the corner a few times. He also admitted that he didn't see the woman after she got into the first deputy's van, and mentioned that there was a third deputy who was better positioned to have seen the whole process.
The state never called this third deputy to testify at all. They also didn't have any kind of physical evidence at all. The equipment needed for video recording would obviously have tipped off the subjects, so that's understandable- but the second deputy, who normally would have been listening to the wireless microphone worn by the first deputy, explained that there was no recorder attached to the receiver, so even if the wireless microphone HAD been working correctly, there would have been no recording. And the fact that the two deputies' testimony contradicted each other, opened the door to there being "reasonable doubt" as to the veracity of their stories.
I'll be honest, I'm about 90% sure that the defendant agreed to perform these acts with the first deputy. However, the sheriff's department's lack of even TRYING to gather evidence (not even something as simple as an audio recorder) and the state's attorney's office mis-handling of the case by not calling this third deputy as a witness, allowed there to be enough doubt in my mind that I wasn't 100% sure- and as both attorneys and the judge were very clear about expressing, both during the selection process and before the trial itself, the whole idea of "reasonable doubt" means that the defendant has a "presumption of innocence", and if I'm not 100% sure, my duty is to give the defendant the benefit of the doubt by finding them "not guilty".
It's strange... again I'm about 90% sure that I just let a guilty woman go free. However, I still feel good about it, because the other jurors and I weren't 100% sure- so she gets the benefit of the doubt. However, even though she's free right now, she should count herself lucky- because she did get off on a technicality.
If I can offer a few suggestions to the various parties involved...
To the Orange County Sheriff's Departement. (1) The next time you guys run a prostitution sting operation, put a tape recorder in the pickup vehicle, with a microphone that picks up voices but filters out engine noise and vibrations. With all the money you guys are getting from our taxes, you can afford it. Busting a prostitute and then letting her walk because you didn't have enough evidence is a waste of time and money. (2) Before a deputy goes to court to testify, have them review their original reports, so that inconsistencies like "she stayed in the van" versus "she got out of the car and went into the house a few times" don't show up on the stand, unless they are actually part of the original reports. (In this case, the original reports were never entered as evidence so we never got to see them.) (3) Tell your deputies, when they go to testify in court, don't look so cocky about being there- one of the other jurors noticed that both deputies seemed to "know they were gonna win" and were treating the case as "a joke, or a formality", and this juror voted "not guilty" on those grounds alone.
To the defense lawyer, who I suspect was working for the public defenders' office, even though we were never told as much. One suggestion. Practice. Your questioning of the witnesses could have been a lot better than it was. It was good that you pointed out the inconsistency in the two deputies' testimony during your final statement, most of the jurors didn't catch that at the time it happened... but we could tell you were struggling, especially during your closing argument. The case resulted in a "not guilty" verdict, but the truth is that you didn't WIN the case so much as these two deputies (especially the second one) LOST the case for you.
And to the defendant, if she ever reads this... Be careful. Realize that you got lucky this time- most of us were sure that you did intend to follow through with the services being offered, and if the state hadn't screwed up the case so badly, you would probably be in jail right now.
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